England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		26 October 2004

1. MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of the first defendant contained in a decision letter, dated 6th April 2004, granting planning permission to the second defendant for the development of land at Sauleskalns, Ship Lane, Sutton-at-Hone, Dartford ("the site") as a small gypsy caravan site.
2. The decision is a redetermination of the second defendant's application to the claimant for planning permission, dated 19th July 2002.
3. The second defendant sought planning permission for a small family gypsy caravan site on the site, which is about one hectare in extent. The claimant refused planning permission on Green Belt and highway grounds. Jurisdiction was recovered by the Secretary of State and an inspector held an inquiry in April 2003.
4. In paragraph 16 of her report she explained that the letter which had accompanied the application had indicated that the site would be occupied by the second defendant and his family, his daughter Mary and her family and his brother Joseph and his family. Each family would occupy two caravans, making a total of six caravans on the site.
5. By the time of the inquiry the occupiers had changed and the second defendant's brother John, known as Jack, had replaced his daughter. But the proposal was still for six caravans to be occupied by three families.
6. The evidence before the inquiry showed that there were four children in each family. All twelve children were of school age or younger, although not all of those who were of school age were attending school.
7. Beyond the fact that some of the children were at school, the inspector was given very little information about their educational needs or the provision that was being made for them.
8. The second defendant put his case before the inspector upon the basis that he and his extended family were all Romany gypsies.
9. It was common ground at the inquiry that the proposed use was inappropriate in the Green Belt. The inspector concluded that the use of the site for the stationing of caravans with their associated domestic paraphernalia:

"... would reduce the perceived openness, encroaching into the countryside and appear to extend the urban sprawl. As such, the use would conflict with two of the purposes of including land within the Green Belt."

10. When considering whether there were very special circumstances to justify the grant of planning permission for inappropriate development in the Green Belt, the inspector said this in paragraphs 68 to 70:

"68. There is no undeveloped land allocated for gypsy sites but, in my opinion, the release of land in the Green Belt would conflict with national and local policy drawn up to protect such areas. Nevertheless, within the Borough there is no evidence of land other than urban land outside the Green Belt being allocated and no proposals have been made for locations where gypsy encampments might be acceptable in the Local Plan Review. Circular 1/94 advises that although private site provision is encouraged, wherever possible gypsies should consult authorities on planning matters before buying land on which they intend to camp. The appellant and the other families occupying the site were made aware of the planning situation immediately after moving onto the site but continued to develop it. On balance, I find the unmet need for additional gypsy sites in the Borough does not amount to a very special circumstance on its own to justify the release of Green Belt land in this location, contrary to development and emerging plan policies and Government guidance.

"69. The proposed use is glimpsed from parts of the surrounding countryside and from Ship Lane to the west of the appeal site. The appeal site is an enclave of vegetation and trees in a gently undulating landscape that descends down to Sutton-at-Hone. Due to the open agricultural landscape around the appeal site, it forms a prominent area in the countryside. Any use of the area would be perceived although, due to the limited scale of the proposed use in relation to the site area, I am of the opinion that it could largely be accommodated without undue harm to the visual amenities of the area. I consider that the siting of a maximum of six caravans on the land would leave sufficient space for vegetation, existing and proposed, for the use to be assimilated into the wider landscape in the summer without visual harm. Nonetheless, I am concerned that in the winter the visibility of the use would be greater and, although planting could break up the perceived mass of the caravans, the encampment would be evident from lights, activity and domestic paraphernalia that could be glimpsed. I consider that the use of the land would be perceived and therefore the apparent undeveloped openness of the area would be compromised by the proposed use...

"70. I acknowledge that the appellant needs a settled site from which he can continue to travel as appropriate. The educational needs of the children and health and welfare of the family are material considerations. Eviction from the site would disrupt the education of the children although the need for them to attend the particular local schools was not evident in all cases. Some of the children may be settled in local schools and I accept that continuity could assist in a better education, but there are no very special needs for a particular school or type of schooling only found in this location. In my opinion, the personal circumstances, while special, do not provide the very special circumstances necessary to overcome the harm from inappropriate development."

11. In paragraph 71 the inspector resolved the highway issue in the second defendant's favour and in due course the Secretary of State agreed with that conclusion.
12. The inspector recommended that planning permission should be refused but when considering what conditions should be imposed if her recommendation was not accepted she said this in paragraphs 74 and 75:

"74. I have considered the conditions in document 18 discussed at the inquiry in the light of the advice in Circular 11/95. Planning permission in the Green Belt should only be granted in the light of the very special circumstances, some of which were personal to the appellant and his extended family. I therefore consider that a personal condition would be necessary, but the condition as worded in document 18 would be too restrictive, should the families have additional children. If planning permission were granted, condition 1 should read:

'This permission shall enure only for the benefit of Mr William and Mrs Beverley Lee and their children, Mr John and Mrs Yvonne Lee and their children and Mr Joseph and Mrs Janet Lee and their children.'

"75. Consideration of the proposal has been on the impact of six caravans within the whole site. In the interests of the visual amenities of the area and the free flow of traffic, the number of caravans on the land at any time should be restricted to six."

13. The question of whether or not a personal condition would be appropriate had been raised during the course of the inquiry and it had been submitted that if the permission was not personal then the use should be restricted to gypsies (see paragraph 55 of the inspector's report).
14. In a decision letter dated 22nd July 2003 the first defendant accepted his inspector's conclusions and recommendation. So far as material for present purposes, the first defendant dealt with the question, "Whether there are very special circumstances, which outweigh the harm from inappropriate development in the Green Belt", in paragraphs 8 and 9 of the decision letter as follows:

"8. The Secretary of State agrees with the Inspector for the reasons at IR 67 to 68 that an unmet need for gypsy sites in the borough does not amount to a very special circumstance on its own to justify the release of Green Belt land in this location, contrary to development and emerging plan policies and Government guidance.

"9. The Secretary of State agrees with the Inspector for the reasons at IR 70 that although eviction from the site would disrupt the children's education, there is no evidence that there are very special needs for a particular school or type of schooling only found in this location. He therefore agrees with her conclusion that the personal circumstances, while special, do not provide the very special circumstances necessary to overcome the harm from inappropriate development."

15. On 16th December 2003 that decision was quashed by Mr Justice Harrison upon the ground that the first defendant had not dealt with an issue that had been raised on behalf of the claimant at the inquiry, namely that if a permanent planning permission was found to be inappropriate then a temporary planning permission to allow the children to finish their education or to give the second defendant time to find another site should be granted.
16. In a letter dated 21st January 2004 the first defendant invited representations about that and a number of other matters. The claimant responded to that invitation by letter dated 2nd February 2004.
17. That letter said in part that the children's education had been considered by the previous inspector; there was no reason to justify a different decision; the children had changed schools once already and:

"Reports from Kent County Council indicate that only William and Beverley Lee's children are registered at local schools and their attendance is sporadic. No special educational needs were cited at the appeal in terms of education."

18. It would seem that the claimant had obtained reports from the education authority to that effect.
19. The second defendant responded to the first defendant's invitation by letter dated 17th February 2004. That letter asked that the inquiry be reopened on the basis that there had been material changes in circumstances. Among a number of other matters, the second defendant argued in paragraph 18 that there had been changes in his family's personal circumstances:

"(i). There is now evidence of the fact that three of his four children have 'special educational needs' and that eviction of the family from the land would be 'educationally disastrous and [would] seriously prejudice their longer life term prospects' - see attached letter from Mr Watson, the head teacher at St Paul's CE (VC) Primary School; and a further letter about Wayne Lee from Mr Gritten, the head teacher of Phoenix Centre.

"(ii). The Appellant's 75 year old uncle, Leonard Bignall, suffers from paranoid schizophrenia and recently experienced a significant deterioration in his health that resulted in his admission to intensive care in the Queen Elizabeth and Queen Mother Hospital in Margate. Mr Bignall now needs to be provided with full-time care by members of his family. The Appellant is one of Mr Bignall's closest relatives and the only person in the family in a position to offer such care. If the family are evicted from the site and have to return to a life on the road it will be impossible for them to provide Mr Bignall with the requisite degree of care and his health is likely to suffer a further deterioration.

"(iii). The Appellant has now managed to build up a healthy business and has a number of regular clients in the area. If the family are refused planning permission and forced to leave the land then the Appellant will find it difficult if not impossible to maintain his contacts and his business."

20. Attached to these representations were detailed statements from the two head teachers. The head teacher of St Paul's Primary School dealt with the circumstances of Luke, Scott and Nathan.
21. It is unnecessary to rehearse the detail but Luke, who was the oldest of the three boys, although he was a Year 7 aged pupil, had remained for an extra year at the primary school and was receiving literacy and numeracy teaching with Year 1 children.
22. He was on the school's Special Educational Needs register at School Action Plus level, the middle tier of the three levels of Special Educational Needs. It was pointed out that he would need at least that level of special educational needs support throughout his secondary education.
23. Scott was in the top year in primary school. He was performing at the level expected for his age and the school was pleased with his progress but did say that disrupting his education at this stage:

"... would destabilise him, set him back and would most likely result in him dropping out of the education system at secondary level."

24. The youngest boy, Nathan, had made an encouraging start but he was already on School Action Level of the Special Educational Needs register and the head teacher thought it likely that he would require an even greater level of support in the near future. The head teacher expressed his opinion:

"... that the regular schooling received by all three boys has made a significant difference to them. To disrupt what has been set in place would be educationally disastrous and seriously prejudice their longer term life prospects."

25. Further on in the letter he made the point:

"The prospects for Gypsy children with little or no education is bleak indeed."

26. Wayne was a Year 10 student at the Phoenix Centre. It is sufficient to say that he had been assessed as having severe learning difficulties and the letter from the head teacher of the centre said that they would continue to support him until the end of his statutory education in July 2005 but the reality was:

"If he has to leave The Centre, because his parents have to move, he will never again attend full time education."

27. The claimant's response to this information is contained in a letter of 27th February 2004 which said in part:

"With particular regard to the children, in the recent case of R (Chelmsford BC) v The First Secretary of State and Draper [2003] EWHC 2978 Admin makes it clear that the educational needs of children will not normally amount to very special circumstances and that such new evidence as there is does not alter the balance."

28. Pausing there, to avoid similar misunderstanding in the future, I should make it plain that whatever else it does the Chelmsford decision does not:

"... make it clear that the educational needs of children will not normally amount to very special circumstances."

29. It does, I hope, make it clear that where children's educational needs are the only factor relied upon as justifying the grant of planning permission for inappropriate development in the Green Belt, if those needs are on the evidence entirely normal, they cannot reasonably be described as "very special circumstances."
30. In that case the only information in relation to the site occupier's two daughters aged 7 and 6 was that they had settled well into their primary school (see paragraph 12 of the judgment). Thus, I concluded that there was nothing special, much less very special about those needs.
31. Returning to the chronology of the present case, in the second decision letter, dated 6th April 2004, the second defendant said in paragraph 5 that he had decided it was not necessary to reopen the inquiry:

"He considers instead that it is appropriate in the circumstances to re-determine the case by considering the written representations from the parties, alongside the report of the Inspector, and the evidence submitted to the original inquiry."

32. Accordingly, he said he had taken into account the inspector's report and the evidence submitted to that inquiry.
33. Having said that the proposed development would be inappropriate development in the Green Belt and would conflict with two of the purposes of including land within the Green Belt, the Secretary of State turned to the question of whether or not there were any very special circumstances. So far as relevant for present purposes, he said this in paragraphs 14 to 16:

"The Secretary of State agrees with the Inspector for the reasons at IR 67 that there is an unmet need for gypsy sites in the borough. The Secretary of State considers that the need for gypsy sites in the area should be accorded weight. Although it is a material consideration the Secretary of State agrees with the Inspector at paragraph 68 of her report that it does not amount to a very special circumstance on its own to justify the release of Green Belt land in this location, contrary to development and emerging plan policies and Government guidance. The Secretary of State has also given weight to the appellant's need for a site from which he can continue to travel as appropriate (IR 70).

"15. The Secretary of State has considered the further representations received from the appellant on 17th February 2004 in regard to education needs of the children and the supporting documentation from the heads of local schools. It seems to the Secretary that, in the light of the special educational needs identified, there is a strong case for the appellant to remain in the area so that the children's education is not disrupted, and he thinks that the educational needs of the children is a matter to which significant weight should be given in redetermining the appeal. The Secretary of State has also had regard to the other personal circumstances put forward in the written representations, namely the need to care for a sick relative, and to maintain the appellant's contacts and his business. However, he does not propose to give these factors as much weight as the educational needs, since he does not consider that it has been demonstrated that it is necessary for the appellant to remain on the appeal site for either reason.

"16. The Secretary of State concludes that the strong personal circumstance and the need for gypsy sites amount to very special circumstances which clearly outweigh the harm to the Green Belt by inappropriate development and any other harm."

34. The second defendant considered the issue of temporary permission in paragraphs 18 to 20:

"18. The Secretary of State has considered whether a temporary permission should be granted, either to enable the children to continue their education (IR 55) or to enable the family to search for an alternative site (IR 42). In this instance the children's education is a strong personal circumstance, which, alongside the need for gypsy sites in the area, amounts to the very special circumstances needed to outweigh the harm to the Green Belt by inappropriate development and any other harm. As it appears that the youngest child is in year 1 and potentially will not finish his schooling for another 10-12 years, the Secretary of State does not consider that a temporary permission for this length of time would be appropriate. Moreover, he considers that after 10-12 years the families would have a well-established home on the site and that to remove the families from the site after such a long occupancy could place a disproportionate burden on those persons, such as to violate their human rights under Article 8 of the Convention on Human Rights.

"19. The Secretary of State considers that as the family is to be allowed to stay on the site primarily because of the children's special educational needs, it would not be reasonable to limit their occupation to a short period to enable the appellant to search for another site.

"20. Having carefully weighed up the harm to the Green Belt against the matters put forward as very special circumstances, the Secretary of State has concluded that there are very special circumstances in this case which outweigh the harm to the Green Belt in this particular case. He therefore proposes to grant a permanent permission."

35. The Secretary of State's overall conclusions were set out in paragraphs 23 and 24:

"23. The proposal constitutes inappropriate development in the Green Belt, and is therefore, by definition, harmful to the Green Belt and is contrary to development plan policies and national policies for the protection of the Green Belt. The proposal would also cause conflict with two of the purposes of including land in the Green Belt, namely checking the unrestricted sprawl of large built up areas, and safeguarding the countryside from encroachment. The Secretary of State accepts, however, that there would not be undue harm to the visual amenities of the area.

"24. As regards the very special circumstances put forward, the Secretary of State accepts that the appellant's children's educational needs are of significance and in view of the special needs which are currently being met at local schools, he places considerable weight on the children's educational needs. He also accepts that there is an unmet need for gypsy sites in the borough. For these reasons, the Secretary of State concludes that the material considerations put forward by the appellant amount to very special circumstances, which are sufficient clearly to outweigh the harm to the Green Belt by inappropriate development and any other harm."

36. In his formal decision the Secretary of State disagreed with the inspector's recommendation, allowed the appeal and granted planning permission for the proposed development of the land as a small gypsy caravan site, subject to a number of conditions, of which only the first two are relevant for present purposes:

"(i). This permission shall enure only for the benefit of Mr William and Mrs Beverley Lee and their children, Mr John and Mrs Yvonne Lee and their children and Mr Joseph and Mrs Janet Lee and their children.

"(ii). The total number of caravans on the site at any one time shall not exceed six."

37. On behalf of the claimant Mr Findlay challenged the decision letter on two grounds. Firstly, he submitted the Secretary of State erred in granting personal planning permission for three families when the evidence in relation to special educational needs on which the first defendant relied related only to the second defendant's children, not to the second defendant's two brothers' children.
38. Thus, while there might have been (subject to ground two below) some justification for granting a personal permission in respect of one family on the site, there was no adequate justification for granting a personal permission for three families.
39. Secondly, in any event, the evidence in relation to the special educational needs of the second defendant's children was inadequate. The Secretary of State failed to give adequate reasons and/or failed to have regard to material considerations. Alternatively, his conclusion that there were very special circumstances was perverse.
40. The Chelmsford decision was relied upon by analogy and it was contended, for example, that there was no evidence that the schools attended by the children were the only ones capable of addressing their special educational needs; that the first defendant did not consider attendance at alternative schools; or give any reasons why other schools could not provide suitable education for the second defendant's children.
41. It is convenient to deal with the second ground of challenge at the outset. The position in the present case is plainly distinguishable from that which obtained in the Chelmsford case.
42. Quite apart from the personal circumstances found by the Secretary of State to exist in the present case, it is important to note that he also found that there was an unmet need for gypsy sites in the area.
43. On its own that unmet need did not amount to a very special circumstance but when combined with the personal circumstances identified by the Secretary of State it was capable of amounting to a very special circumstance. Whether it did so was a matter for the Secretary of State's planning judgment.
44. In Chelmsford I said this in paragraph 66:

"There will be many cases where the inspector or the Secretary of State is uniquely placed to decide whether or not a particular factor can fairly be described as a very special circumstance."

45. I gave a number of examples, the last of those being:

"... where reliance is placed upon an assessment of the need to make provision for accommodation for gypsies in a particular area."

46. In paragraph 67 I said:

"In such cases it will be very difficult, if not well nigh impossible, for a court to conclude that the circumstances relied upon by the decision taker could not reasonably be said to be 'very special'."

47. I then explained why that was not the position on the facts of the Chelmsford case.
48. Turning to the second limb of the "very special circumstances" in the present case, the children's educational needs, the first defendant had before him a great deal of information about their special educational needs and the manner in which they were being addressed by the two schools in question.
49. In addition, the Secretary of State was provided with the headteacher's view as to what the effect would be upon these particular children if their education was to be disrupted.
50. It will be recalled that the view of the two headteachers was that in the case of the oldest boy he would effectively never again attend school, and in the case of Scott he would drop out from secondary education. The youngest boy already had special needs, and in the case of Luke he would clearly require special educational support throughout his secondary education.
51. The overall conclusion was that to disrupt what had begun would be "educationally disastrous".
52. It was, of course, open to the claimant to challenge this material in its further representations.
53. It could have argued, for example, that the headteachers had overstated the case or that the children's needs could be met at some different school or, if the families had to move out and travel on the road, in some different manner.
54. It did not do so. Thus the Secretary of State was not asked to consider what alternative schools or alternative provision might be available. In these circumstances, the claimant cannot complain that the Secretary of State's reasoning is in some way inadequate because he failed to grapple with issues that the claimant itself did not raise.
55. The Secretary of State had to deal with the matter as best he could upon the information that was available to him. He did so and was entitled to place reliance upon the fact that there were special educational needs and that those needs were "currently being met at local schools".
56. It follows that ground one has to be considered against the background that on any basis the first defendant was entitled to conclude, and gave adequate reasons for concluding, that a personal permission for the second defendant and his immediate family was appropriate, notwithstanding that the proposed use as a small family caravan site was an inappropriate development in the Green Belt.
57. The complaint that is now made by the claimant that the first defendant did not separately consider the second defendant's family and the families of his two brothers has an air of artificiality.
58. The decision letter is, of course, addressed to the parties, who will have been well familiar with the issues raised and the manner in which they were presented before the inspector at the inquiry.
59. The second defendant had sought planning permission for a small family gypsy site on a one hectare site.
60. On the evidence before the inspector, that desire to establish a small family gypsy site was plainly not confined to the second defendant's immediate family but to the extended family. That was how the matter was presented to the inspector (see paragraph 30) and it would appear that the inspector accepted that this was a fair description of the defendant's and his two brothers' families (see the reference to "The appellant and his extended family", in paragraph 74 of her report).
61. The extended family plainly consisted of the three brothers, their wives and their children. That is reinforced by the fact that the inspector made it plain that her assessment had been carried out on the basis of the impact of six caravans, two caravans per family, on the site.
62. Mr Findlay submits that at that stage of the proceedings no distinction had been drawn in terms of very special circumstances between the educational needs of the 12 children.
63. I agree it would appear that both the inspector and the Secretary of State dealt with the children within the extended family as a whole and, looking at the needs of the extended family as a whole, concluded that there were no very special circumstances.
64. Thus the reference to disruption of the children's education in paragraph 9 of the first decision letter is, on a fair reading of the letter, a reference to all of the children within the extended families rather than simply the children of the second defendant.
65. If one turns to the second decision letter, paragraph 15 is plainly a response to paragraph 18 of the representations submitted by the second defendant. It deals with the three issues raised in paragraph 18: the second defendant's children's special educational needs; the need to care for a sick relative, and the second defendant's business needs.
66. The Secretary of State did not give the last two factors as much weight as the children's educational needs but it is plain that the first defendant realised that he was dealing with the second defendant's children's special educational needs. He referred to the strong case for the appellant to remain in the area so that the children's education was not disrupted (paragraph 15) and to the appellant's children's educational needs in paragraph 24 of the decision letter.
67. Thus there is no question of the Secretary of State misunderstanding the position. He realised that the special educational needs were confined on the evidence to the second defendant's children. That does not, of course, mean that the needs of the other eight children could be or were simply ignored. The first defendant was obliged to consider all material considerations. They would have included the educational needs of the other children and there is no reason to believe that the first defendant would simply have left those out of account.
68. They were not a major issue and in the circumstances were adequately covered by the first defendant's references in paragraphs 5 and 6 of his decision letter to the inspector's report.
69. It is important that this is not lost sight of because when the first defendant was accepting the inspector's view that there was a local need for gypsy sites in the area and that that factor should be accorded weight, the fact that there were here three families with in all 12 children was plainly material in terms of that local need. Providing a site for three families would make a small contribution to meeting that need.
70. I accept that the difference between the special educational needs of the second defendant's children and the educational needs of his brothers' children became, at least potentially, a live issue when the second defendant's representations were sent to the first defendant. Those representations clearly related to the particular needs of the second defendant's children.
71. The claimant was plainly alive to this point since, on the basis of reports that it had earlier received from the education authority, it itself had made the point in its letter of 2nd February that those reports related simply to the second defendant's children.
72. Against this background the claimant must have appreciated that special educational needs were being urged in respect of only some of the children.
73. Thus it was open to the claimant to say in response not merely that these further representations did not disclose any very special circumstances in respect of any of the families, but also that if and insofar as they disclosed very special circumstances in respect of one of the three families, then a personal permission in respect of that family only would be justified but there would be no justification for going further and granting a personal permission which would embrace all three families within the extended family.
74. The claimant, however, did not take that course. I am therefore not persuaded that the question of whether planning permission should have been granted for one family and two caravans, rather than for three families and six caravans, can fairly be said to have been one of the principal issues with which the Secretary of State had to deal in express terms in setting out his reasoning.
75. I am satisfied that the claimant's failure to raise this issue in the representations was not an oversight and not due to the fact that its attention was distracted by the request for the inquiry to be reopened.
76. It was obvious that there was at least a distinct possibility that the first defendant would not reopen the inquiry. Indeed, the burden of the claimant's submission was that it was unnecessary to reopen the inquiry because circumstances had not materially changed.
77. If one considers the way the claimant was putting its case before the inspector, it had two objections to the grant of planning permission for the proposal: Green Belt and highways.
78. So far as the latter is concerned, neither the inspector nor the Secretary of State considered that there was any problem with a grant of planning permission limited to six caravans. It follows that there would have been no highway justification for seeking a permission for a lesser number.
79. So far as Green Belt is concerned, the claimant's case can conveniently be divided into the underlying policy objection, and the question of whether there was any additional harm beyond that which would be caused by granting permission for inappropriate development in the Green Belt.
80. It will be recalled that the inspector assessed the appeal upon the basis that the proposal was for six caravans and concluded that there would be no undue harm to visual amenity. The Secretary of State agreed with that conclusion (see paragraph 23).
81. Thus, again, there would have been no obvious reason for arguing that a grant of planning permission should be restricted to two rather than six caravans upon visual amenity grounds.
82. That really leaves the Green Belt objection in principle and the inspector's conclusions about the effect of the proposal on the openness of the Green Belt.
83. I have set out the passages above. There is no basis for suggesting that the Inspector's conclusions about openness would have been materially affected by a reduction in the number of caravans to two rather than six.
84. In simple terms, no case was ever advanced that planning permission should be restricted to two caravans if that was what was justified by the personal circumstances of one of the families within the extended family group. The council's case was quite simply that there should be no caravans upon this Green Belt site.
85. Since no such case was advanced, even as a fallback position by the claimant, the Secretary of State was not obliged to root around to see whether such a case might be made and then to give reasons for accepting or rejecting it.
86. I return to the way in which the matter was put before the inspector, which appears to have been accepted by her and certainly not dissented from by the Secretary of State, that is to say that this was a proposal being made by the second defendant on behalf not merely of his own immediate family but on behalf of his extended family.
87. If the matter is considered in that light, one had an extended family trying to obtain planning permission for a small family site in an area where there was an unmet need for gypsy sites.
88. Once some members of the extended family had been shown to have particular needs, such as special educational needs, then, absent any representations to the contrary, it was not unreasonable for the first defendant to proceed on the basis that the extended family should be permitted to remain together, absent any obvious planning advantage in requiring them to split up. The position might well have been different if eg two caravans would have caused materially less visual intrusion than six caravans.
89. Mr Findlay rightly pointed out that the first defendant could not simply have been relying on local need because if there was such a need rather than a personal need, the proper response would have been to grant a permission that was not personal but restricted to use by gypsies (see paragraph 55 of the inspector's report). Given that the first defendant accepted that there was such a need, the claimant cannot sensibly complain that he chose a more restrictive approach limiting the occupancy of the site not to gypsies in general but to three named families.
90. That he did so is, in my judgment, a fair reflection of the way in which the cases, both of the claimant and the second defendant, had been put before him.
91. The question as put to both the Inspector and the first defendant was not: should any one particular family within this extended family be granted a personal planning permission, but should a personal permission be granted for the benefit of this extended family?
92. The fact that not every member of the extended family had special needs was not a bar to the Secretary of State considering the matter in that way, no other approach had been suggested to him by the parties.
93. It became clear from Mr Findlay's submissions that one of the council's principal concerns with this decision letter is the question of precedent.
94. The question was posed: what if there is a site for ten caravans, one site occupier can demonstrate very special circumstances because his or her children have special educational needs but the remaining nine families have no such needs; does that mean that in such a case planning permission will be granted on a personal basis for ten families to occupy the site?
95. The short answer is "certainly not", upon the basis of any sensible reading of this decision letter.
96. In this decision letter the Secretary of State was not purporting to establish some novel principle. He was simply dealing with the needs of this particular extended family.
97. Each case is bound to be fact sensitive and in many cases it will be necessary to examine the closeness of the relationship which is said to exist as part of an extended family, whether there are any reasons why the parties should or should not be on the same site, what the position is in relation to local needs and so forth.
98. This decision letter must been seen as no more than a response to the way in which this particular case was presented: the needs of an extended family within which there were children in one of the families who had special educational needs, against a background of a local need for gypsy sites, and against the further background that there was nothing in the evidence which suggested that there was any planning reason to reduce the number of caravans to two from six, once it was concluded that a planning permission for a small family gypsy caravan site was going to be granted in the Green Belt in any event.
99. The first defendant was simply responding as best he could to the material that had been put before him.
100. The point belatedly raised by the council was not raised before the Secretary of State, let alone raised as a principal issue. The first defendant's reasoning was adequate. Since there are no obvious planning objections to a grant of planning permission for six, rather than two caravans on this particular site, the council has in any event suffered no prejudice once its concern about precedent is set to rest. For these reasons this application must be dismissed.
101. MR MOULD: My Lord, I invite the court to dismiss the application with the first Secretary of State's costs.
102. MR JUSTICE SULLIVAN: Yes.
103. MR MOULD: Assuming, I hope not unreasonably, that Mr Findlay will not resist that. We have, as I understand it, reached agreement on a figure. Again, if that is right, I would invite your Lordship to assess costs on the basis of that figure, which is £5,950.
104. MR JUSTICE SULLIVAN: Yes.
105. MR WILLERS: My Lord, there is no application for costs by the second defendant but I would ask for detailed assessment of the second defendant's publicly funded costs. If that could be inserted into the order I would be grateful.
106. MR JUSTICE SULLIVAN: Yes. You do not object?
107. MR FINDLAY: I do not object to either of those and I confirm my learned friend's understanding of the position as to costs.
108. MR JUSTICE SULLIVAN: So the application is dismissed. The claimant is to pay the first defendant's costs. Those costs to be summarily assessed in the sum of £5,950.
109. So far as the second defendant's costs are concerned, I simply direct detailed assessment for community legal services funding purposes or whatever the proper phrase is.
110. You have an application?
111. MR FINDLAY: I do, my Lord. I am instructed to ask for permission to appeal from your Lordship. I do not know whether your Lordship would wish me to develop that.
112. MR JUSTICE SULLIVAN: Not, I think, given the hour. You presumably say you have a real prospect of success given the arguments you have advanced to me.
113. My answer is probably going to be reasonably predictable, given the judgment I have just given, if you will not think it discourteous. But can we leave it there at this time --
114. MR FINDLAY: So long as your Lordship does not feel it discourteous either, then I am more than content.
115. MR JUSTICE SULLIVAN: Not at all. Thank you very much. Then I do not grant permission to appeal. I am not satisfied there is a real prospect of success once the decision letter is properly understood.
116. Anything else? Thank you all very much.